Differences which arise betwixt Copy-holders A Copy-holder doth surrender his Copy-hold-lands H. 25 Eliz. in B. R. Leon 1. part 2. to A to hold the Lands till he hath levied the summe of 100 l. upon trust that afterwards he shall surrender to the Use of B A levies the money and being required to make the surrender to B he refuseth to doe it whereupon B exhibits his Bill to the Lord in the Court of the Manor The Lord there makes a Decree that A make the Surrender to B which he again refuseth to doe and thereupon the Lord seizeth the Lands and afterwards admits B to the same It was the opinion of the whole Court in this Case That both the Seizure of the Lord and his Admittance of B were lawfull because the Lord in such Cases of Equity to execute Trusts is Chancellour in his own Court If a false Judgment be given in a Vid. 14 H. 4. 34. Court-Baron by the Steward against a Copy-holder the Copy-holder in such case shall not have either a Writ of Errour or a Writ of False Judgment but he may sue in the Court of the Lord by Bill to be relieved against such Judgment and the Lord as Chancellour may give him Relief therein and shall restore the Land to the party upon the false Judgment given by the Steward and Restitution made to the Copy-holder SECT XV. Of Surrenders upon Conditions and where such Surrenders shall be good where not Proofs A Copy-holder in Fee surrendred out P. 31 Eliz. Co. 4. part Kite and Queinton's Case of Court his Copy-hold-lands to the Use of another and his Heirs upon Condition At the next Court the Surrender was presented but in the Presentment the Condition was omitted He to whose Use the Surrender was made being dead the Lord admitted his Heir It was Resolved in this Case That the Presentment of the Surrender was void because it was not made in such manner as the Surrender was made But if the Conditional Surrender had been presented it had beed good although it was not entred into the Court-Roll A Copy-holder surrendred his Copy-hold Tr. 2 Jac. B. R. Cro. 2. part Hall Shardbrook's Case upon Condition and afterwards by Deed he released the Condition Resolved it was good without a Surrender for that a Condition or a Right cannot properly be said to be determined by a Surrender but it may be by a Release The Case was Grandfather Father M. 15 E. 3. 13. and Son The Grandfather died The Father assigned Dower to the Grandmother being his Mother who surrendred it back to the Father paying 10 l. per annum The Father died his Wife brought Dower against the Son and recovered because the Father had the Fee and Freehold conjoyned in the life of the Grandmother by the Surrender It was Resolved in this Case That when the Wife of the Father doth recover Dower she shall pay to the Grandmother so much Rent as doth belong to her proportion in Dower And in this Case it was holden That although the Estate of a man be Conditional and defeasible upon a bad Title yet the Wife shall not be ousted of her Dower untill the Conditional or defeasible Title be defeated And where Husband and Wife are Tenants for life and surrender to him in the Reversion the Wife of him in the Reversion shall be endowed and yet the Surrender is but Conditional for if the Wife of the Tenant for life overliveth her Husband the Surrender is defeasible à fortiori in case where it is not defeasible as in this Case And it was said in case of a Surrender of Copy-hold-land where it was Conditional the Wife is dowable of it if the Condition do not determine the Estate in the life-time of the Husband But a Feme is not dowable of Copy-hold but by Custome of the Manor H. 27 Eliz. Cro. 3. part 68. Bright and Hubbard's Case A Copy-holder devised his Lands to his Wife for life and that she should sell the Lands for the payment of his Debts and surrendred to the Use of his Will The Copy-holder died His Wife surrendred the Land upon Condition to pay 12 l. It was Adjudged It was a good Surrender upon the Condition and that it was a good Sale made by her The Father Copy-holder in Fee surrendred Tr. 33 Eliz. Cro. 1. part Symonds and Lawnâ—'s Case his Copy-hold-lands to the Use of his Son in Fee upon Condition to perform Covenants in an Indenture The Son after Admittance surrendred to J S upon Condition that if the Son pay 10 l. the Surrender to be void The Son neither pays the 10 l. nor performs the Covenants in the Indenture The Father enters Resolved That by the Entry of the Father both the Surrenders were avoided and there the Son might well enter after the death of his Father and the Surrender made by him to J S. If a Copy-holder doth surrender his 33 Eliz. Co. 4. part Westwick's Case Lands to the Use of J S and his Heirs absolutely and the Lord admits the Tenant upon Condition it is void for that after Admittance the Tenant is in by him who made the Surrender not by the Lord. The Custome was That a Copy-holder might out of Court surrender to the Tr. 28 Eliz. in B. R. Cro. 1. part 〈◊〉 dett's Case Use of a Stranger in Fee The Lord of the Manor made J his Steward ad exequendum per se or his sufficient Deputy who made A his Deputy pro hac vice to take a Surrender of Husband and Wife the Remainder in Fee The Deputation was farther viz. Et ulteriùs faciendum quantum in me est A took a Surrender of the Husband and Wife upon Condition which Condition was afterwards peformed and executed Resolved in this Case That although the authority to take the Surrender was absolute and to be without a Condition yet when A took it upon a Condition to be performed it was a good Surrender made to him by reason of the words in the Deputation Et ulteriùs faciendum c. A Woman Copy-holder durante Viduitate P. 39 Eliz. B. R. Oland and Barwick's Case Cro. 1. part acc sowed the Land and before Severance of the Corn she took Husband Resolved That although the Estate of the Wife was incertain and determined by the Limitation and not by any Condition either in Fact or in Law that the Lord should have the Corn sowed upon the Lands A Copy-holder in Fee of Lands discendable in Borough-English had 3 Sons H. 2 Jac. B. R. Cro. 2. part Curâ—ies and Wolverston's Case and surrendred to the Use of his Will and thereby devised his Lands to his middle Son in Fee upon Condition to pay to his 4 Daughters to every of them 20 l. at their full age The eldest Son had Issue 2 Daughters and died The middle Son is admitted and doth not pay the Daughters their Summs at their full ages The youngest Son
for the reason aforesaid Having thus shewed what will be a good Surrender of Copy-hold or Customary Lands by an actual Surrender in the Court of the Lord of the Manor I shall now consider SECT II. Whether a Copy-hold may be said to be surrendred by any Act Words or Agreement made betwixt the Lord and the Copy-holder or by the Copy-holder with a Stranger made in the Court in the Presence of the Lord or his Steward I Do conceive generally that no Act or Words of the Copy-holder can Vid. Leon. 1. part 172. Penruddock and Newman's Case pass his Copy-hold in such a manner as that the same shall be accompted to amount to a good Surrender of the same But yet it rests upon a Difference Proofs If a Copy-holder bargains and sells his Copy-hold by Deed of Bargain and Sale enrolled though it be to the Lord of the Manor himself it is void and shall not amount to a Surrender If Tenant for life of Lands at the Common Law agrees with his Lessor or him in the Reversion that he shall have his Interest in the Land for the Rent of 20 s. per annum this Agreement will not amount to a Surrender of his Land by the Common Law A fortiori If a Copy-holder or other Customary Tenant shall say to his Lord or other person in the Court of the Manor I agree to surrender my Lands these words will not be a present or an express Surrender nor will they amount to so much as a Relinquishing of his Estate for in truth it is not any thing in present but an Act to be done in futuro Like unto the Case put by Wray Tr. 31 Eliz. in B. R. Sweeper and Randall's Case Leon. 1 part 178. Chief Justice A seised of the Manor of D demiseth the same Manor at will that it is no Lease No more in the other Case shall it be a Surrender or a Relinquishing of his Copy-hold or Copy-hold-estate But yet notwithstanding it will be agreed that in some cases an express and particular Agreement made by a Copy-holder with the Lord of the Manor for or concerning his Copy-hold-lands will amount to a Surrender of the same The Case was That the Lord of a Manor pretending that a Copy-holder had forfeited his Copy-hold-lands entred M. 32 Eliz. in Ceâ— B. Collam and Sir Hugh Portman's Case Leon. 1 part 191. into a Communication with the Copy-holder concerning the same Upon the Communication thereof had betwixt them it was agreed that the Copy-holder should pay unto the Lord the summe of 10 l which he paid accordingly and that in consideration thereof the Copy-holder should have Election whether he would have the Land assured unto him by Copy or by Bill for the life of him and his Wife or durante viduit ate of the Wife who made his Election to have the Land by Bill It was the opinion of the Justices in that Case That this Agreement was a good Surrender of the Lands and a good Estate thereupon vested in the Wife for her life A Copy-holder in Fee came into the M. 13 Jat B. R. Betfield and Adams Case Court of the Lord of the Manor and took a new Estate of his Copy-hold-lands from the Lord to himself for life and afterwards to his Wife for life and after to his Son for life It was a Question whether this Act of the Copy-holder was the giving up and the relinquishing of his Estate of Inheritance in his Copy-hold and did amount to a Surrender of his old Estate therein It was agreed in this Case That if a Copy-holder Vid. 29 Eliz. Co. 2. part Lanc's Case of Inheritance takes a Lease by Indenture for years of the Lord of his Copy-hold that by that Act of his his Inheritance in his Copy-hold is gone and determined But it seemed to be the better opinion of the Court That although that this taking of a new Estate shall imply a Surrender and be accounted as to some purpose to amount to a Surrender yet in the judgment of Law it shall be but as a Surrender to his Use for life and after to his Wife and Son for their several lives and that still the Inheritance of the Copy-hold remains in him But Quere this Case For that H. 36 Eliz. in Co. B. Rot. 2640. in Adams and Shepheard's Case it seemeth to be adjudged to the contrary A Copy-holder said to his Lord that Vid. Colman and Bedilâ—'s Case Anderson's Reports 199. acc he would not hold his Land longer by Copy but by a Bill under the Lord's hand for his life who made him such a Bill which the Copy-holder accepted of It was agreed by the Justices in that Case That thereby his Copy-hold was determined SECT III. Of Surrenders out of Court and where Surrenders to the Steward Deputy-steward or into the hands of Tenants of the Manor out of Court shall be good where not BY the general Custome of the Realm a Copy-holder may surrender his Lands in the Court of the Lord of the Manor or out of Court to the Lord by the hands of Tenants of the Manor But a Surrender out of Court to the Lord or by the hands of Tenants of the Manor or of the Bailiff or Reeve is not good without a special Custome The Lord hath such an absolute Interest in his Manor that he may hold a Court within his Manor at what time he pleaseth But he is not compellable by his Copy-holder to hold or call a Court to accept of a Surrender But if he doth accept of such a Surrender of his Copy-holder out of Court the same is good whether it be to his own Use or to the Use of other persons And as the Lord may himself accept of a Surrender out of Court so likewise may the Lord himself grant new Copies of the Lands out of Court and such Grants shall be good But the Lord himself cannot hold his own Court for any of the purposes aforesaid But the Lord himself may give authority unto others to take Surrenders to the Use of others out of Court and so may his Steward or Under-steward give Conditions to others to take the like Surrenders out of Court to others Uses which Conditions shall be in the nature of a Dedimus potestatem And so it was Resolved in a Case out of Ireland referred to the Judges of England to certifie their opinions therein where the Case was The Steward of the Court of a Manor in Ireland being in England sent a Writ in the nature of a Dedimus potestatem to one who was in Ireland to take a Surrender there of Copy-hold-lands and the opinion of the Judges here to whom the Case was referred to advise and certifie their opinions was That such a Surrender taken by Dedimus was good enough But note that in such case it must be intended that such giving power to take a Surrender if it be to be done it must be alledged to be done
c. I shall not deliver any absolute opinion upon the same although I do much incline to the Affirmative part being chiefly led thereunto by the opinion of Mr. Littleton and by the Resolution in Manxell's Case and of my Lord Coke in Heydon's Case and a late Resolution in the said Point 42 Eliz. in Erish and Rives Case where it was adjudged in the Court of Common Pleas upon an Evidence given in a Case of Copy-hold-lands within the Manor of Istleworth-Sion in the County of Middlesex where it was Resolved That no Estate-tail could be of a Copy-hold without a particular Custome to warrant the same but if there was such a particular Custome within the Manor to warrant such Estates then by the Custome co-operating with the Statute as before is expressed Copy-hold-lands might be well entailed within the said Statute Admitting then that by an especial Custome of the Manor Lands may be entailed the next matter to be considered of is By what and whose Acts the said Estate shall be either discontinued or barred and what shall amount to a Discontinuance or a Bar to the Issue in Tail of such Estate In 13 R. 2. sits Judgment 7. it is 13 R. 2. sits Judgment 7. said That the Heir who is inheritable to the Copy-lands by Custome may recover the same by Plaint in the Court of the Lord in the nature of an Assise of Mort-dauncestor but he shall not have an 15 H. 8. Tenant by Copy 24. Assise of Novel Disscisin And 15 H. 8. Tenant by Copy 24. The Heir of a Copy-holder Tenant in Tail shall recover the Lands in a Formedon in the Discender The Custome of a Manor was That Plaints in the Court of the Lord of the Manor have used to be in real Actions A Recovery was by Plaint in the nature of a real Action against a Copy-holder being Tenant in Tail and a Recovery thereupon had It was holden in that Case That the said Recovery shall be a Discontinuance to take away the Entry of the Heir in Tail because such Plaints are warranted by the Custome and it is an Incident which the Law annexeth to the Custome That a Recovery shall be a Discontinuance But vide Tr. 36 Eliz. in B. R. in Deal and 36 Eliz. B. R. Deal and Rigden's Case Moore 358. Rigden's Case If it had been a Surrender in Court it had been no Discontinuance In 27 Eliz. in a Case concerning the M. 9 Car. in Co. B. Hill and Vpchurche's Case Brownloe 121. Manor of Northhall in the County of Essex That if Copy-hold-lands might be entailed within the Statute of Westm 2. then a Custome of a Surrender of it should be a Bar or a Discontinuance of such Estate for as the Estate might be created by Custome so it might be discontinued by a Surrender by Custome And Tr. 38 Eliz. Field and Eliot's Case A Surrender by Tenant in Tail of a Copy-holder in Fee makes a Discontinuance of it But yet notwithstanding those Authorities and Cases I do conceive that a Surrender is no Discontinuance of a Copy-hold-estate in Tail If a man be seised of a Copy-hold in H. 30 Eliz. B. R. Right and Footeman's Case Leon. 1. part 95. the right of his Wife or be Tenant in Tail of a Copy-hold and he doth surrender to the Use of another in Fee It was holden in that Case That the same doth not make any Discontinuance of the Estate of the Wife or of the Estate-tail but that the Wife or the Issue in Tail may respectively enter into and upon the Land And according to this it was adjudged in Gravenor and Brook's Case before mentioned in 36 Eliz. Copy-hold-lands were entailed and 37 Eliz. in C. B. Lane and Hilâ—'s Case the Copy-holder surrendred the said Lands to the Use of another man in Tail with divers Remainders over and then he died It was said in this Case That it was no Discontinuance of the Tail but the Issue in Tail notwithstanding the Surrender might enter But it was said in that Case That if it were a Discontinuance that in such case a Formedon in the Reverter did not lie by the Tenant in Tail because when a Copy-holder makes a Gift in Tail he hath no Reversion but a Possibility and the Lord shall avow upon the Donee for the Rents and Services and not upon the Donor In Trespass it was adjudged That a H. 1 Jac. Oldcatâ—'s Case Moore 753. Surrender by Tenant in Tail of a Copy-hold was not any Discontinuance of it no more then a Surrender by Tenant for life to another in Fee was a Forfeiture If an Enfant Tenant in Tail surrendreth H. 35 Eliz. Goales and Gran's Case adjudge acc his Copy-hold-lands to the Use of a Stranger who is admitted the Enfant may enter at his full age because it was not a Bar nor a Discontinuance It is not to be disputed or questioned whether a Common Recovery of Lands at the Common Law with Voucher over and Warranty be a Bar of Lands entailed It is universally received by all Learned in the Laws of the Realm to be a Bar of such an Estate and the Inheritances of a great many persons of Quality and others do depend upon such Common Recoveries had and suffered But then the Question hath been whether a Common Recovery had and suffered in the Court of the Lord of the Manor shall be a Bar of an Estate of Copy-hold-lands entailed and for that it will stand upon this difference Where the Custome of the Manor hath always been that such a Recovery there had shall be a Bar where not For without a special Custome I do conceive that by a Recovery had and suffered in the Court of the Lord of the Manor an Estate-tail of Copy-hold-lands cannot be barred But where such a Custome is or hath been out of mind used there I conceive that a common Recovery had and suffered in the Court of the Manor will bar an Estate in Tail of Copy-hold-lands I shall onely put you two Judgments and Resolutions to make good this difference although many others may be alledged Upon a special Verdict in an Action P. 37 Eliz. in B. R. Clun and Pease's Case Cro. 1. part of Trespass it was found That the Lands were Copy-hold demisable in Tail with the Remainder over in Tail That Tenant in Tail in possession suffered a Common Recovery with Voucher in the Court of the Manor of these Lands and afterwards died But there was not any Custome found for suffering Recovery of such Lands in the Court of the said Manor It was holden by the whole Court in that Case That the Recovery should not bind the Tail but upon a Recompence in value and in that case the Issue could not have Land in value Also the Lord should lose his Fine and the party to whose Use the Recovery was had should hold the Lands without Admittance or Grant from the Lord which is contrary to